Tuesday, August 28, 2007

The Nashville Tennessean's Jonathan Marx reports on a wild card in the Fisk-O'Keeffe saga: Alice Walton's Crystal Bridges Museum has offered to purchase a 50-percent share of the Stieglitz Collection for $30 million. Under the offer, Fisk and Crystal Bridges would jointly own the collection, which “would be kept intact and continue to be known in perpetuity as the Alfred Stieglitz Collection.” It would be available to the public half the time at Fisk and half the time at the Bentonville, Arkansas museum (which is scheduled to open in 2009).

Given that, as I understand it, the court has already ruled that Fisk cannot sell the collection, this seems like a non-starter. There's a hearing scheduled for Sept. 6 on the proposed settlement between Fisk and the O'Keeffe museum. Marx says Walton's letter to the university acknowledges that the offer only kicks in if the court does not approve the settlement.

UPDATE: The Nashville Scene's Christine Kreyling thinks the proposed settlement is "not as favorable to Fisk or to the collection as what Walton proposes":

"In [the Walton] scenario, the Stieglitz Collection remains intact and thus closer to O’Keeffe’s vision. The artist personally assembled the pieces in the collection and stipulated that they be exhibited together so that anyone who walked through the gallery door could see modern art as Stieglitz did. Whether O’Keeffe would care if the door is in Nashville or Bentonville is anybody’s guess."

The Christian Science Monitor weighs in today on the Fisk-O'Keeffe dispute. It reports that "Tennessee Attorney General Robert Cooper Jr. is expected to file an opinion this week on the proposed sale." The story does a good job of describing the "temptation ... financially strapped small colleges [face] to liquidate treasures for short-term cash relief," but I think it buys a little too much into the notion that the proposed settlement is "not quite a sale" since the deal "would allow [Fisk] to display 'Radiator Building' for part of each year" (as noted here, it's actually four months out of every four years).

So begins Tom Infield's story in today's Philadelphia Inquirer on the latest developments in the Barnes saga. "Almost three years after a judge issued an order permitting the Barnes Foundation to move its billion-dollar art collection to Philadelphia, a group of Barnes neighbors in Merion filed a lawsuit yesterday seeking to halt the move. The action in Montgomery County Court asks Judge Stanley Ott to dissolve the Barnes board of directors and appoint a receiver to run the foundation under his supervision." The Philadelphia Bulletin has some choice quotes from the petition.

Infield also reports that "Montgomery County commissioners have said they intend to file a suit similar to the one filed yesterday by the Friends of the Barnes." County Deputy Solicitor Carolyn Carluccio tells Lee Rosenbaum their suit will "focus on the recent 'significant changes in circumstances' that might persuade Judge Ott to reconsider" his decision. Tyler Green promises some "bombshells" later today.

UPDATE: Tyler posts the "bombshells" (in four parts; start here and work back), which are really just some highlights from the petition. I don't see anything that should give anyone much hope that the decision will be reversed, but I guess we'll soon see.

Then, on Sunday, he had an update on the "Pollock Matters" exhibition opening next week at Boston College's McMullen Museum of Art (mentioned last week here). Interestingly, Matter and "Williamstown-based forensic scientist and conservator" James Martin are still at odds over whether Martin can publish the results of a study he was hired to do two years ago (discussed earlier here). Martin is still saying "he won't release the study unless Matter and others in his camp agree not to sue him." Matter's attorney says "he offered Martin assurances that he would not be sued as part of a release, but that Martin declined to sign it"; Martin's attorney counters that the proposal "stated that if Martin were to sign, the McMullen catalog would be the 'sole and exclusive manner for publications and public disclosure' of his analysis. ... 'To say, "Yes, you can participate, but you have a sock stuck in your mouth the rest of your life," those aren't terms that are acceptable.'"

The official position of the Pollock-Krasner Foundation, which refused to permit the use Pollock images in the show's catalog, is: "we've seen no hard evidence these paintings are by Pollock."

Monday, August 27, 2007

In a post last week about the proposed Randolph College deaccessioning, I wondered about the exact terms of the bequest at issue. Lee Rosenbaum moved the ball forward on Friday, quoting this "unambiguous" language:

"I devise and bequeath [funds from the relevant trust] to Randolph-Macon Woman's College of Lynchburg, Virginia, to be used from time to time for the Art Department of said College to form a permanent collection of art."

That does seem fairly clear. It's pretty hard to argue that the sale would not be contrary to the donor's wishes -- though, if I was forced to construct an argument, it might be that what the donor wanted was for the school to "form" a permanent collection of art, which it has now done. She didn't say it had to be a permanent collection of any particular size, and if, instead of having a collection worth $40 million (see paragraph 7 of the complaint, which you can read in its entirety here), Randolph ends up with a collection worth, say, $30 million, and has $10 million it can use to alleviate its serious financial problems (see paragraphs 9 and 10 of the complaint), it's hard to see that as the end of the world. It's also worth noting that the school is at least paying lip service to the possibility of "a partnership or joint ownership of some of the [art] with another charitable organization, such as a museum" (complaint paragraph 10).

Lee Rosenbaum reports that Sotheby's is nearing $475 million in outstanding guarantees to consignors --- "just $25 million shy of its 'outstanding auction guarantee limit' of $500 million, which was set by its board earlier this month." In the comments to this post at Artworld Salon, Alexandra Peers says there's evidence that consignors "are asking for guarantees more often instead of simple cash advances or loans in advance of a sale. Advances and loans against property are down from a year ago." In the same comments, Greg Allen talks about "the extent to which the auction houses mitigate their exposure on guarantees by enlisting third-party investors in the guarantee process."

Wednesday, August 22, 2007

Lee Rosenbaum points to a report from The Chronicle of Higher Education that "Randolph College, in Lynchburg, Va., is asking a court to declare that the college has the authority to sell or share ownership of items from its art collection that were purchased with funds from a trust set up under a 1928 bequest, or to enter an order modifying the terms of the trust to allow the college to take such steps." According to the report, the bequest "stipulated that income from the trust be used to form a permanent art collection for the college. In the court documents filed [yesterday], the college states that it has purchased more than 35 works of art using those funds and that those works 'are now worth more than $40-million.'" More here from the Lynchburg News and Advance. For background, see here.

Lee says the terms of the bequest "would be circumvented through a favorable court response to the college's request" (though one suspects that, as a radical conservative when it comes to deaccessioning, she would oppose the sale no matter what), but I'm curious to see the precise terms. Does it say, for example, that works acquired with funds from the trust can never be sold? Could they be swapped for other works? Is there not still a "permanent art collection" at the school if it includes 34 works instead of 36? What, exactly, are the terms of the trust?

"Montgomery County leaders have had a falling out with the lawyer they had hired to file a lawsuit aimed at keeping the Barnes Foundation art museum from moving to Philadelphia. ... [Thomas Ellis, chairman of the county commissioners,] said yesterday that [Mark] Schwartz, of Bryn Mawr, had quit after being told Monday that the county intended to let him go."

Apparently the dispute had to do with the fact that Schwartz was also representing the Friends of the Barnes.

But don't worry -- the show will go on:

"Ellis said the county intends to proceed. He said the work would be taken over by the [county] solicitor's office. He said the main grounds for the suit would be that Barnes Foundation leaders, in asking a county judge in 2004 to permit a move to Philadelphia, failed to inform him of financial aid the state might have offered to keep it in Lower Merion."

Tuesday, August 21, 2007

Artist Vladimir Kush -- who, according to Artnet, "sells his own Surrealist-inspired work at his own Kush Fine Art, with locations in Lahaina, Hi., Las Vegas, Nev., Laguna Beach, Ca. and New York "-- has sued pop star Pink (and her record label) for copyright infringement in the Southern District of New York. He alleges that the music video for Pink’s single "U + Ur Hand" uses imagery from his painting Countes Erotiques.

Bill Patry doesn't seem overly impressed with the claim: "In my opinion, it is extremely likely that whoever created the image of the woman that opens the video ... did so after seeing Kush's work. But Kush doesn't have a copyright in the idea of a naked woman mounting the back of a book even if he was the first to come up with it (something I have no way of knowing)."

UPDATE: Fortune's Roger Parloff says "the images do, in fact, look extremely similar to me" -- "both images show a woman dressed only in red stockings clinging to the spine of a book in such a way that when she splays her limbs the book will open" -- and gets this further comment from Professor Patry: "I don’t think even if Kush created the image for the first time that he obtains a copyright on all other depictions of a naked woman mounting the back of a book spine. I think that’s all defendants took: the ceramic figure in the music video looks exactly alike in concept but not actual features."

It's one more example of how hard it can be to distinguish "ideas" from "expression." (See here for another recent example.)

Monday, August 20, 2007

JL at Modern Kicks weighs in on the latest developments in MASS MoCA's lawsuit against my client Christoph Büchel. Sergio Muñoz-Sarmiento has more here and here, including the museum's failed attempt to keep from public view all new documents produced in the litigation: "In an era of growing demand for corporate transparency and accountability, it boggles the mind that an art institution--traditionally against censorship and creative restrictions--would try to enforce the silencing of artistic voices through force of law."

Lawprofs Kal Raustiala and Christopher Sprigman have an interesting piece on the New Republic website arguing against Chuck Schumer's bill to extend copyright protection to fashion designs: "There's no doubt that some apparel designers suffer because of excessive copying. But the industry as a whole is doing terrifically well--it is a $350 billion a year industry--as Schumer himself noted while promoting the bill. Upsetting the fashion industry's successful model of creativity makes little sense. It's a cure that is worse than the disease."

I posted about Raustiala and Sprigman on fashion and copyright earlier here.

There's an update in the current Newsweek on the so-called "Matter Pollocks," which I wrote about most recently here. Nothing really new to report. The works will be shown at the McMullen Museum at Boston College -- as part of a show called "Pollock Matters" -- starting Sept. 1. See press release here.

My secret mission last week failed, but here's a good overview of where things stand. And more here from Bloomberg architecture critic James S. Russell:

"Moving poses its own perils. Judge Stanley Ott requires the new structure to reproduce exactly the galleries from the Cret building and Barnes's arrangement of the works. The collection can neither grow nor shrink. It's got to be the most peculiar major architectural commission in years. ...

"To make things messier, the Barnes can't be sure when it can move. The city of Philadelphia has offered a perfect 4.5- acre site along the Parisian-style Benjamin Franklin Boulevard that leads to the Philadelphia Museum of Art. The city is supposed to move an overcrowded juvenile jail now occupying the site to a new facility by next May, yet it has failed to take the necessary steps. Assume the replacement will take a minimum of four years."

Wednesday, August 08, 2007

The New York Times reports that "five armed and masked thieves walked into a museum in Nice, France, while it was open on Sunday afternoon" and stole four "masterworks" -- two Impressionist paintings and two works by Jan Brueghel the Elder. The Times says "the museum appears to be dogged by security problems." The same two Impressionist paintings were stolen in 1998 but recovered a few days later "on a boat in a nearby town." The museum’s then-curator was convicted in that theft and received a five-year prison sentence in 2002. One of the same two paintings was also stolen in 1978 and recovered several days later in a sewer.

On the other hand . . . French police have recovered the two Picasso paintings and a drawing that were stolen from the home of his granddaughter in February (see here). Three people are in custody.

Tuesday, August 07, 2007

Fisk University and the Georgia O'Keeffe Museum have -- for a second time -- entered into a settlement agreement to resolve their lawsuit over the intended sale of two paintings from the university's Stieglitz Collection. A previous settlement was rejected by the Tennessee Attorney General. The Nashville Tennessean has the story here. The settlement agreement is here. The parties' joint motion to the Court to approve the settlement, which contains a concise summary of the settlement terms, is here.

The basic deal is very similar to the one the AG rejected in the spring. Fisk sells O'Keeffe's Radiator Building to the museum for $7.5 million, in exchange for which the museum (a) drops its counterclaims seeking to force the university to turn over the entire collection to the museum and (b) agrees not to challenge the sale of the other important painting the university is interested in selling, Marsden Hartley's Painting No. 3. The museum also agrees to loan the O'Keeffe to the university for four months every four years.

The previous deal was for $7 million, and I also don't recall the four-month loan requirement being a part of it (though I could be wrong about that), so this is in some ways a slightly better deal for the university than the one the AG turned down. (The museum also agrees that, if it sells the painting in the next 20 years, Fisk will get half of any proceeds over $7.5 million, but, pace Tyler Green, I assume that's very unlikely to happen.) On the other hand, the sale of the Hartley now comes with some restrictions that I, again, don't recall being in the prior deal (though again I could be wrong): (i) Fisk has to use its best efforts to sell to a buyer who agrees to keep the painting in Tennessee; (ii) if it can't find such a buyer, it has to use its best efforts to extract a commitment from the buyer to "return the painting periodically to Fisk for a finite period of time during which it can be exhibited at Fisk"; and (iii) it must include, "as a condition of the purchase" (i.e., this is more than just a "best efforts" obligation), that the purchaser will commit, so long as it owns the painting, that it will "assure to the public, under reasonable regulations, access to the painting to promote the study of art." Preseumably, all of those conditions will combine to depress the sales price Fisk could otherwise expect to receive (which, at the time of the previous settlement, was estimated to be in excess of $20 million).

The settlement is expressly conditioned on approval of the Court (see paragraph 1(a)), and the parties will appear before Judge Lyle on Aug. 31. There is no similar provision regarding the Attorney General. The Tennessean article reports that he "was not part of the discussions for the latest agreement, and it remains to be seen what his response will be." (A spokeswoman is quoted as saying, "We're going to review what was filed.")

Tyler Green is befuddled. He's also skeptical of the statement by a Fisk spokesman that "if the settlement doesn't go through, it does mean Fisk could cease to exist," on the ground that it's hard to see how $7.5 million can be "the do-or-die amount"; but that overlooks the additional money the university is going to get from the sale of the Hartley. The real haul for the university from the deal is more likely in the $20-30 million range. (I'm not sure whether that's a more plausible "do-or-die amount" or not, but it's certainly moving in the right direction.) Radical conservative Lee Rosenbaum must not take the do-or-die claims very seriously either: she calls for the Attorney General "to nix this ditzy deal," which would mean, again, that the university doesn't see any of that $20-30 million and, in addition, would also risk losing the entire Stieglitz Collectionin a September trial on the museum's counterclaims.

Here's the latest (probably) futile gesture to keep the Barnes from moving: "Montgomery County commissioners are demanding a reply from state Attorney General Tom Corbett to their request that the AG act on their behalf to protect the $3 billion Barnes Art Collection from a move to Philadelphia."

"A sculpture depicting a tearful elephant in chains that ... became the center of a federal lawsuit in Washington was put on display in Union Square Park today, with the blessing of New York City officials. The fiberglass sculpture, 'Ella PhantzPeril,' shows a circus elephant with its front right leg in shackles. In 2002, People for the Ethical Treatment of Animals, the animal welfare group, tried to place the sculpture on view as part of the 'Party Animals' exhibition — a summer public art show depicting festive donkeys and elephants — organized by city officials in Washington. The city refused, and PETA sued the District of Columbia Commission on the Arts and Humanities in federal court. A federal judge ... sided with PETA, finding that the commission’s arguments for excluding the elephant 'strained credulity.' However, the United States Court of Appeals for the District of Columbia Circuit later reversed that decision, ruling that the 'Party Animals' exhibition consisted of 'government speech,' rather than individual artistic expression."

Or maybe the really big news of the weekend was the Brooklyn artist who steered a homemade wooden submarine toward the Queen Mary 2 in New York Harbor and ended up in police custody. Randy Kennedy had the story in The New York Times Saturday. The AP poses the question: "Duke Riley: Artist. Patriot. Moron?" More from The Gothamist, including nearly identical answers to the AP's question from the headline writers at the Daily News and the Post.

The big news over the weekend was that New York City withdrew the controversial proposed regulations concerning public photography, which, among other things, earned a city official a World's Worst Person designation from Keith Olbermann last week. The Mayor’s Office of Film, Theater and Broadcasting will redraft the rules in light of all the complaints and then re-release them for public comment. The New York Times story is here.

Thursday, August 02, 2007

"A video installation by the Singaporean artist Lynn Lu has been withdrawn from the Singapore Art Show after Ms. Lu conceded its close resemblance to the work of an American artist, Jason Mortara. ... Mr. Mortara wrote to the National Arts Council in Singapore to declare that Ms. Lu’s work ... was 'a substantively direct copy of a copyrighted piece' that he created in 2002 .... In it he used ink to write memories from his life on pieces of toilet paper before burning them over a candle. In [her work. entitled 'X'] Ms. Lu wrote the names of former friends, colleagues and lovers on toilet paper using apple juice so that the names would appear briefly when exposed to the heat of the candle. Mr. Mortara said a 'coincidence' was 'impossible,' because he and Ms. Lu knew each other and they had performed on the same night at a show in San Francisco in 2003. After questioning by Heman Chong, curator of the Singapore show, Ms. Lu said that she had been inspired by Mr. Mortara’s work and that she and he had agreed to retitle her installation 'X (After "Memories Revisited" by Jason Mortara)' and to share the small grant she had received for her work. She said: 'It had not occurred to me before this that Mr. Mortara would consider "X" a copyright infringement of his work, as artists often influence each other, but I saw it as a grave insensitivity and carelessness on my part. I apologized to Mr. Mortara for my poor judgment, and suggested crediting him' with the new title."

Ed Winkleman says Lu was "unquestionably referencing Mortara a bit too closely," but, given that "artists reference other artists all the time," isn't sure pulling the work from the exhibition was necessary. Sergio Muñoz-Sarmiento comments: "Artists: beware of your studio visits and friends!" This is actually a really good test case for the famous distinction between the expression of an idea and the idea itself. Legally, only the former is protected. That is, no one can "own" the idea of inscribing toilet paper with text and then exposing it to a burning candle. But an artist can obtain protection for a particular expression of that idea, and if someone else expresses the idea too much in the same way as the original, an infringement claim may be possible. On quick glance, it appears Lu may well have crossed that line here.

After having their anti-graffiti legislation struck down in Federal court last year (see here and here), New York City is trying again: "Mayor Bloomberg inked legislation on Thursday that once again seeks to keep markers, spray paint, and other so-called graffiti tools out of the hands of people under the age of 21." The new law is here. More from The New York Times here.

The former director of the Long Beach Museum of Art, fired in November after 17 years on the job, has filed a wrongful termination lawsuit against the museum. The suit, filed last Thursday in Los Angeles Superior Court, includes claims for age discrimination, breach of contract, wrongful termination, and defamation and seeks actual and punitive damages. Full story here.

Wednesday, August 01, 2007

Keith Olbermann gave his "World's Worst Person" award last night to Julianne Cho, associate commissioner in the Mayor's Office of Film, Theatre and Broadcasting, which has proposed new rules requiring permits and liability insurance for broad categories of public photography. Earlier post here. More here from Sewell Chan of The New York Times.